Ms. Sneha Kore and Anr vs Mr. Arun Kapoor Resolution Professional of Monarch Brookefields LLP IA No. 4154 of 2023 In CP (IB) No. 2517(MB) of 2018
Facts:
1) Corporate Insolvency Resolution Process (CIRP) against M/s Monarch Brookefileds LLP (the Corporate Debtor) was initiated vide Order of the Tribunal dated 27.09.2019 and Mr. S Gopalakrishnan was appointed as Interim Resolution Professional (IRP). RP issued a public announcement on 24.11.2019 in Form ‘A’ inviting claim under Regulation 6 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and the last date for submission of claim was 07.12.2019
2) After receiving resolution plan from the prospective resolution applicants, two plans were considered and put to vote and the resolution plan submitted by Planet Builders and Developers was unanimously approved by the members of CoC. Hence, the Respondent filed an I.A. No. 70/2022 for approval of a Resolution Plan before the Tribunal. The said Application for approval of Resolution Plan is pending adjudication before this Hon’ble Tribunal.
3) On 25.08.2023, the Applicants filed their proof of claim electronically in Form CA for an outstanding sum of Rs. 93,16,601.92, out of which the principal sum is of Rs. 35,00,000/- arising in respect of the purchase of the Flat and the remainder of the claim is in respect of Parking, Maintenance and other charges, compensation and costs as awarded by the Hon’ble Maharashtra Consumer Disputes Redressal Commission vide Order dated September 23, 2019 in Consumer Complaint No. CC/18/837.
4) The Respondent rejected the claim of the Applicant vide E-Mail dated August 28, 2023. Being aggrieved by the rejection of his claim, the Applicant herein has filed this application before the Hon’ble Tribunal impugning the rejection of claim by the Respondent.
Issue: Whether the application can be admitted ?
Arguments:
Applicant:
1) Counsel submitted that applicant came to know about the CIRP of the Corporate Debtor only in the month of August, 2023. The Applicant took some time to scout and engage the professionals dealing in insolvency and bankruptcy laws and soon thereafter, the Applicant filed his claim on August 25, 2023 with the Respondent.
2) It was submitted that even if the Applicant’s claim was not filed within time, his claim should have been considered and included in the Information Memorandum prepared by the RP, more so when the claim against the Corporate Debtor has been adjudicated by the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra upon the complaint filed by the Applicant vide CC/18/838 under the provisions of the Consumer Protection Act, 1986.
Respondent:
1) Counsel submitted that Applicants had received a letter from the erstwhile IRP dated 23rd June, 2020 requesting them to file a claim in accordance with the provisions of the Code. Yet, no claim was filed despite the Applicants having received this letter.
2) It was submitted that period of 90 days for submission of claim as required under Regulation 12 of the CIRP Regulations, 2016 came to an end on 22nd February, 2020. Admittedly, the Applicants did not submit their claim before 18th November, 2021. Therefore, the claim submitted by the Applicants was thoroughly belated and could not have been processed or placed in the information memorandum or be made known to the potential resolution applicants. The acceptance of the claim of the Applicants would have derailed the CIRP of the Corporate Debtor and would have defeated the objectives of the Code.
3) The CoC had already approved the Resolution Plan submitted by Planet Builders and Developers in the 13th CoC meeting held on 15th November, 2021 and only minor changes were required to be incorporated by the Prospective Resolution Applicant before 18th November, 2021. Since the IM was published way before the filing of claim by the Applicant, there was no occasion to incorporate the claim of the Applicant in the IM. The claim of the Applicant had not been recorded with any Information Utility or in the books of accounts of the Corporate Debtor.
Decision: NCLT dismissed the application.
Rationale:
1) It held that there is an unexplained delay of 1357 days or 3 years, 8 months and 18 days. No explanation has been offered by the Applicant about the delay in lodging the claim before the Respondent. The Applicant states in his application that he became aware about the CIRP of the Corporate Debtor in the month of August, 2023. However, in our opinion, this is not a satisfactory explanation as the public announcement concerning the CIRP of the Corporate Debtor was made on 24.11.2019.
2) It held that the Public Announcement of the CIRP of the Corporate Debtor has been made in the two newspapers viz. Financial Express and Mumbai Lakshadeep on 24.11.2019 which are in circulation at the place/location where the registered office of the Corporate Debtor is situate. Therefore, the plea of the Applicants that the public announcement was made in breach of Regulation 6 (supra) cannot be accepted. Further, the plea that since the Applicants reside far away from Mumbai, therefore they cannot be expected to know of the CIRP is equally untenable as once the public announcement is made under Section 15 read with Regulation 6 (supra), it shall be deemed to be communicated to the creditors of the Corporate Debtor (including the Applicants herein) under proviso to Regulation 6A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
3) It is not open to the Applicants to contend that since the consumer case (in which the Corporate Debtor was a party) was awarded in favour of the Applicants, the Respondent should have been aware and included the claim of the Applicants in the list of creditors even if the Applicants had not submitted their claim in time.
Order:
